A federal judge in New York on Tuesday rejected the Trump administration’s plan to switch legal teams in the census case, throwing another wrench into the government’s drive to overcome a Supreme Court ruling that blocked its plan to ask every U.S. household how many residents are citizens.
The Justice Department announced on Sunday it was pulling its full team from the census cases and swapping in a fresh crew drawn from other units. Attorney General William Barr said on Monday that some lawyers on the case felt uncomfortable continuing after telling courts the citizenship question would be dropped, only to be contradicted the following morning by a furious tweet by President Trump.
But plaintiffs including the state of New York and the American Civil Liberties Union objected to the attorney switch, saying the government failed to justify the swap under court rules requiring satisfactory reasons for changing lawyers and assurances that litigation wouldn’t be sidetracked.
“Measured against those standards, [the government’s] motion is patently deficient,” U.S. District Judge Jesse Furman said in a three-page order. It provided “no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel.”
“Despite the president attempting to fire his lawyers, this is not an episode of ‘The Apprentice,’ ” said New York state Attorney General Letitia James, who represents a coalition of largely Democratic-led states and local governments challenging the citizenship question. “Judge Furman denied his request and required the administration to comply with the rules regarding substitution of counsel.”
“The Justice Department owes the public and the courts an explanation for its unprecedented substitution of the entire legal team that has been working on this case,” said ACLU attorney Dale Ho, who represents immigrant-rights groups. “The Trump administration is acting like it has something to hide, and we won’t rest until we know the truth.”
In Washington, the U.S. Justice Department declined to comment.
In January, Judge Furman blocked the citizenship question after finding that Commerce Secretary Wilbur Ross’s official rationale for posing the query—to help protect minority voting rights—wasn’t credible. The ruling, which the Supreme Court upheld last month, was based on requirements that agencies act with candor and a reasoned basis in making policy.
Federal courts in California and Maryland subsequently reached similar conclusions. The latter court currently is conducting an inquiry into whether the citizenship question was intended to discriminate against Hispanics, an allegation the Justice Department denies.
Judge Furman observed that until losing at the Supreme Court, the Trump administration had pushed courts to expedite proceedings.
“This case has been litigated on the premise—based in no small part on Defendants’ own insistence—that the speedy resolution of Plaintiffs’ claims is a matter of great private and public importance,” he wrote. That was difficult to square with a wholesale switch in legal teams, he wrote, observing that the government’s next filing was due in three days.
Should the Justice Department follow through on Mr. Trump’s goal of asking the district court for another chance, “time would plainly be of the essence in any further litigation relating to that decision,” the judge said.
The judge’s order allowed only two lawyers who have changed jobs to leave the case. The remaining nine will remain counsel until each files an individual affidavit justifying their departure, the order said.
This wasn’t the first time government attorneys have withdrawn from the case, Judge Furman noted. “In August 2018, lawyers from the United States Attorney’s Office for the Southern District of New York—‘the office that normally represents the Government in this District’—withdrew as counsel,” he wrote.
The switching out of the DOJ lawyers was a highly unusual shakeup.
James Burnham, the politically appointed head of the federal programs branch, told Mr. Barr a change made sense. A new team whose members had never dealt with the citizenship question wouldn’t be forced to answer damaging questions about why they were suddenly backtracking on arguments they had made in court for months, current and former officials said.
The former litigation team consisted of members of the department’s federal programs branch, which specializes in defending the administration against lawsuits and policy challenges. For the new team, lawyers from the Office of Immigration Litigation were recruited.
OIL has defended the Trump administration’s immigration policies and handled other politically sensitive issues. One of its lawyers came under fire for suggesting in an argument that officials didn’t necessarily need to provide toothbrushes, soap or beds for migrant children detained at the border for the conditions to be considered safe or sanitary.
Also on the new team is the politically appointed leader of the department’s consumer protection branch, who worked in the White House counsel’s office until May.
Members of the former team believed their options to put the question on the census were extremely limited and were caught off guard by Mr. Trump’s tweet saying he wished to push forward. But Mr. Barr told the New York Times he had been in regular talks with Mr. Trump about the census since the Supreme Court ruled and was aware of his desire to find a way to get the question on the 2020 form.
None other than Ann Coulter declared on Friday, “The only national emergency is that our president is an idiot.” She has a point. The president’s declaration, in the words of Speaker Nancy Pelosi (D-Calif.) and Senate Minority Leader Charles E. Schumer (D-N.Y.), amounts to “a power grab by a disappointed President, who has gone outside the bounds of the law to try to get what he failed to achieve in the constitutional legislative process.”
Even the best-executed power grab would have been difficult to defend in court. There is no emergency (border crossings are down), the illegal drug problem (despite Trump’s contradicting his own administration) isn’t primarily a border problem, and the humanitarian problem that does exist (families fleeing Central America to request asylum) won’t be solved by a wall.
Nevertheless, in 10 steps, Trump irretrievably ruined whatever legal case he would have had.
- First, he did not address the issue when the Republican Party held majorities in both the House and Senate, when, for example, he had the ability to push through measures on reconciliation.
- Second, he rejected a deal for $25 billion in border security in exchange for legalization of “dreamers,” which doesn’t sound like the sort of thing you’d do in a real emergency.
- Third, he signed a continuing resolution that kept the government running until Dec. 8, 2018. Again, you wouldn’t agree to that in the face of a real emergency.
- Fourth, Congress passed another continuing resolution to keep the government open until Dec. 21, 2018.
- Fifth, the president provoked a 35-day shutdown that ended with a three-week continuing resolution. Again, this doesn’t give off an emergency “vibe.”
- Sixth, as appropriators negotiate, the president repeatedly threatens to us emergency powers until Congress gives him what he wants. The critical precondition for an emergency declaration is lack of congressional compliance.
- Seventh, appropriators reach agreement — and Trump signs it.
- Eighth, there is no report or analysis demonstrating why Congress’s response is inadequate. Instead, Trump declares an emergency on the same day as the signing, a transparent effort to eclipse his utter failure to deliver on a campaign promise.
- Ninth, at a bizarre Rose Garden press conference on Friday, Trump declared, “I didn’t need to do this. . . . I just want to do it faster.” It is difficult to imagine a more damaging confession that the emergency is figment of Trump’s frail ego and thirst to avoid disappointing his base.
BREAKING: Trump just contradicted his OWN argument for a wall in an unhinged press conference. He is doing himself absolutely no favors…
The Debrief: An occasional series offering a reporter’s insightsIn 2014, Donald Trump sued to have his name taken off a pair of Atlantic City casinos he built three decades earlier that had gone bankrupt.
“It’s really indicative of how we all know he thinks so in-the-moment and so off-the-cuff that it winds up being dangerous,” said Jack O’Donnell, former president of the Trump Plaza Hotel and Casino, one of the properties from which Trump removed his name.
.. “The whole idea of once things are going wrong, he takes no ownership — that’s just Trump,” O’Donnell added. “He does not own anything that goes wrong. The problem is, he’ll blame anybody. Obviously, it’s the Democrats in this situation.”
.. He alternated between insisting that Mexico would pay for the wall through a convoluted, and false, interpretation of a new trade deal and suggesting that the U.S. military and other agencies would find money in their existing budgets to build the barrier if lawmakers failed to deliver — despite restrictions on federal agencies reprogramming funding.
.. And the president even began rebranding “the wall,” parrying Democratic denunciations of a concrete monolith at the U.S.-Mexico border by announcing that his administration would build “artistically designed steel slats.” That quickly prompted widespread derision.
.. He even appeared to be conspiring with prominent conservative talk show hosts to help guide him. Rush Limbaugh boasted that Trump had “gotten word to me” that he would shut down the government if he failed to win the wall funding.
By Friday, a desperate Trump had seized on the “nuclear option” proposed by congressional border hawks to discard the Senate’s long-standing filibuster rules and approve with a majority vote a House-passed spending plan that included the $5 billion.
.. Aides announced that he had indefinitely postponed his winter vacation at his Mar-a-Lago resort in south Florida, which was scheduled to begin Friday evening.
.. In the case of his casinos, Trump had divested himself of control of the properties five years before he sued the new owners, having retained a 10 percent stake for the continued use of his moniker.
In his lawsuit to remove his name, Trump asserted that the properties, which twice under his management had faced bankruptcy, had fallen into disrepair and tarnished a Trump brand that “has become synonymous with the highest levels of quality, luxury, prestige and success.”
.. To O’Donnell, the episode was “classic Trump.” The president, he said, had taken ownership of the shutdown in the televised showdown with Schumer and Pelosi to demonstrate his toughness to his base — without a plan to deal with the aftermath.
“That’s really what this was: ‘I’m a tough guy. Don’t think I can’t handle the heat,’ ” O’Donnell said. “The fact is, he can’t handle it.”
As he so often does, President Trump falsely declared on “60 Minutes” that North Korea and the United States were going to war before he stepped in to thwart it.
Interviewer Lesley Stahl was having none of it. “We were going to war?”
Trump immediately retreated to safer ground, expressing a view rather than trying to assert a fact: “I think it was going to end up in war,” he said, before moving on to his “impression” of the situation.
The 26-minute interview that aired Oct. 14 was typical Trump — bobbing and weaving through a litany of false claims, misleading assertions and exaggerated facts. Trump again demonstrated what The Fact Checker has long documented: His rhetoric is fundamentally based on making statements that are not true, and he will be as deceptive as his audience will allow.
.. Trump resorting to all of his favored moves to sidestep the truth.
.. On Stahl’s first question, about whether Trump still thinks climate change is a hoax, the president dodged by saying “something’s happening.” He then completely reversed course and declared that climate change is not a hoax and that “I’m not denying climate change.”
.. Trump also falsely said the climate will change back again, even though the National Climate Assessment approved by his White House last year said that there was no turning back. He said he did not know whether climate change was man-made, though the same report said “there is no convincing alternative” posed by the evidence.
.. Trump did his usual shrug when asked whether North Korea is building more nuclear missiles. “Well, nobody really knows. I mean, people are saying that.” Among the people who are saying that are U.S. intelligence agencies, who have concluded that North Korea does not intend to fully surrender its nuclear stockpile and is instead working to conceal its weapons and production facilities.
.. Even when he adjusts his rhetoric, at times contradicting what he has just said, Trump almost always appears to believe firmly in what he is saying.
.. On trade, the president continues to suggest that deficits mean the United States is losing money: “I told President Xi we cannot continue to have China take $500 billion a year out of the United States.”
That’s wrong. The trade deficit just means Americans are buying more Chinese products than the Chinese are buying from the United States, not that the Chinese are somehow stealing U.S. money.
.. Trump also continues to misstate the trade deficit with China. It’s not $500 billion, as he told Stahl; it was $335 billion in 2017
.. Curiously, he denied to Stahl that he ever said he was engaged in a trade war with China, even though he has said and tweeted it many times, including on Fox News last week.
.. He also falsely said that “the European Union was formed in order to take advantage of us on trade.” That’s a misreading of history, at best. The E.U. got its start shortly after World War II as the European Coal and Steel Community — an early effort to bind together bitter enemies such as Germany and France in a common economic space to promote peace.
.. Trump surfaced another old favorite knock on U.S. allies — “we shouldn’t be paying almost the entire cost of NATO to protect Europe.” Actually, the United States pays 22 percent of NATO’s common fund. Trump keeps counting U.S. defense spending devoted to patrolling the Pacific Ocean and other parts of the world as part of NATO funding.
When it was pointed out that Defense Secretary Jim Mattis, a former general who served in the military for 44 years, says he believes NATO had kept the peace for 70 years, Trump sniffed, “I think I know more about it than he does.”
.. Questioned about Russian interference in the 2016 election, Trump conceded that “they meddled.” But he added, “I think China meddled, too.” When Stahl said he was “diverting the whole Russia thing,” Trump insisted he was not. “I’m not doing anything,” he demurred. “I’m saying Russia, but I’m also saying China.”
There is no evidence China engaged in the same disinformation effort as Russia, which intelligence agencies have said was designed to swing the election toward Trump.
.. Finally, Trump continued his habit of mischaracterizing what his predecessor did. He claimed that Barack Obama “gave away” the Crimea region of Ukraine, when actually Russia seized it and Obama then led an effort to impose sanctions in response.
.. In one of the testier back-and-forths, Trump tried to shut down Stahl with one line that was indisputably true: “I’m president,” he said, “and you’re not.”
President Trump so alarmed his defense secretary, Jim Mattis, during a discussion last January of the nuclear standoff with North Korea that an exasperated Mr. Mattis told colleagues “the president acted like — and had the understanding of — a ‘fifth or sixth grader.’”
At another moment, Mr. Trump’s aides became so worried about his judgment that Gary D. Cohn, then the chief economic adviser, took a letter from the president’s Oval Office desk authorizing the withdrawal of the United States from a trade agreement with South Korea. Mr. Trump, who had planned to sign the letter, never realized it was missing.
.. book by Bob Woodward that depicts the Trump White House as a byzantine, treacherous, often out-of-control operation — “crazytown,” in the words of the chief of staff, John F. Kelly — hostage to the whims of an impulsive, ill-informed and undisciplined president.
.. The White House, in a statement, dismissed “Fear” as “nothing more than fabricated stories, many by former disgruntled employees, told to make the president look bad.”
.. Mr. Woodward portrays Mr. Mattis as frequently derisive of the commander in chief, rattled by his judgment, and willing to slow-walk orders from him that he viewed as reckless.
.. Mr. Trump questioned Mr. Mattis about why the United States keeps a military presence on the Korean Peninsula. “We’re doing this in order to prevent World War III,” Mr. Mattis responded, according to Mr. Woodward.
.. In April 2017, after President Bashar al-Assad of Syria launched a chemical attack on his own people, Mr. Trump called Mr. Mattis and told him that he wanted the United States to assassinate Mr. Assad. “Let’s go in,” the president said, adding a string of expletives.
The defense secretary hung up and told one of his aides: “We’re not going to do any of that. We’re going to be much more measured.” At his direction, the Pentagon prepared options for an airstrike on Syrian military positions, which Mr. Trump later ordered.
.. another layer to a recurring theme in the Trump White House: frustrated aides who sometimes resort to extraordinary measures to thwart the president’s decisions — a phenomenon the author describes as “an administrative coup d’état.” In addition to Mr. Mattis and Mr. Cohn, he recounts the tribulations of Mr. Kelly and his predecessor, Reince Priebus, whose tensions with Mr. Trump have been reported elsewhere.
.. Mr. Cohn, Mr. Woodward said, told a colleague he had removed the letter about the Korea free trade agreement to protect national security. Later, when the president ordered a similar letter authorizing the departure of the United States from the North American Free Trade Agreement, Mr. Cohn and other aides plotted how to prevent him from going ahead with a move they feared would be deeply destabilizing.
.. Last January, Mr. Woodward writes, Mr. Dowd staged a practice session in the White House residence to dramatize the pressures Mr. Trump would face in a session with Mr. Mueller. The president stumbled repeatedly, contradicting himself and lying, before he exploded in anger.
.. Mr. Woodward told Mr. Trump he interviewed many White House officials outside their offices, and gathered extensive documentation. “It’s a tough look at the world and the administration and you,” he told Mr. Trump.
“Right,” the president replied. “Well, I assume that means it’s going to be a negative book.”
President Trump lashed out at his longtime lawyer, Michael D. Cohen, on Saturday, suggesting that there could be legal consequences for Mr. Cohen’s decision to record a discussion
.. “Inconceivable that the government would break into a lawyer’s office (early in the morning) — almost unheard of,” Mr. Trump wrote on Twitter. “Even more inconceivable that a lawyer would tape a client — totally unheard of & perhaps illegal. The good news is that your favorite President did nothing wrong!”
.. advisers say has become more unwilling than ever to listen to advice
.. Mr. Trump signaled open warfare on Mr. Cohen, a longtime fixer he had until now tried to keep by his side.
.. While the president suggested on Saturday that Mr. Cohen’s recording may have been illegal, New York law allows one party to a conversation to tape it without the other knowing.
.. Mr. Trump himself also has a history of recording phone calls and conversations.
.. A person familiar with the discussions said that once The Times approached Mr. Giuliani, the president’s legal team chose not to assert attorney-client privilege over the recording.
.. John R. Bolton, the national security adviser, mostly stayed away from Mr. Trump.
Mr. Bolton wrote down four bullet points aboard Air Force One that he believed were relevant, including that Mr. Trump should acknowledge that he believed the intelligence agencies’ findings on the Russian meddling. He relayed them to the press secretary, Sarah Huckabee Sanders
.. Trump has surveyed almost everyone he has talked to about his performance in Finland, but few told him just how poorly it had gone. Aides suggested different options for “changing the narrative,” without seeming to realize that a simple story would not suffice.
.. Mr. Trump ultimately came up with his own solution: He would say he had left out a word in the news conference with Mr. Putin
.. Ivanka looked for ways to push the narrative away from Russia.
.. She said her worker retraining announcement with her father later in the afternoon at the White House could provide a pivot toward a new story.
.. Kellyanne Conway, pointed out that Dan Coats, the director of national intelligence, and two other administration intelligence officials would appear at a national security conference in Aspen
.. Privately, Mr. Trump’s advisers have suggested that Mr. Cohen had done things that Mr. Trump was unaware of. The recording makes that harder to accept.
On his way to the New Jersey golf club, the president ignored several questions from reporters about why his campaign would have denied knowledge of the payments if he was on tape discussing them with Mr. Cohen.